States to Censor Online Services

By Dan Tebbutt

Published in PC Week Australia, 13 December 95 (p. 8)

Copyright Dan Tebbutt, 1995

Victoria and Western Australia recently became the first states to legislate
for censorship of on-line services. As part of the national framework agreed
upon earlier this year by the Standing Committee of Attorneys General, the two
state legislatures have passed bills that leave primary censorship in the hands
of service providers.

The Kennett government's Classification (Publications, Films and Computer
Games) (Enforcement) Bill has passed through both house of the Victorian
Parliament and awaits vice-regal assent. Part 6 of the bill deals with on-line
information services. Victorian Attorney General Jan Wade said the legislation
would not be used to prosecute service providers acting in the normal conduct
of their business. ``The bill places service providers in a special category to
ensure they are not liable, except in circumstances of deliberate transmission
of illegal material,'' she said. An on-line service provider is exempted from
liability under this provision unless it ``knowingly publishes, transmits or
makes available for transmission to a minor'' the classified material. It is
also an offence to advertise the availability of objectionable material from
an on-line service.

Prison terms of up to two years and hefty fines are set out for various
offences under part 6. Publishing or transmitting objectionable material
through an on-line service is an offence, although it is a defence that the
person did not believe the material was objectionable, provided they have
``reasonable grounds'' for such belief. The bill defines ``objectionable
material'' as an objectionable publication or film or a computer game dealing
with sex, drug misuse, crime, cruelty, violence or ``revolting or abhorrent
phenomena'' according to reasonable adults' standards of ``morality, decency
and propriety''. It also prohibits depictions of people who appear to be
younger than 16 engaging in sexual activity.

An on-line information service is broadly defined as ``a service which permits,
through a communication system, on- line computer access to or transmission of
data or computer programs''. Providing unsuitable material to minors is also
criminalised, subject to two defences: firstly if the person accused ``did not
know and could not reasonably have known'' that the recipient was a minor and
secondly that the person took ``reasonable steps'' to avoid transmitting
material to a minor. These provisions are conjunctive and the second may
require a person to show how they tried to avoid allowing minors to access
prohibited information. The second defence is a reasonable belief that the
material was not unsuitable.

The Victorian Labor opposition described the bill as ``unworkable'' and
criticised the Liberal government for not consulting with the on-line industry
and users. ``The new laws create a nightmare for parents and others who have to
make these judgements,'' said shadow attorney general Bruce Mildenhall.
``Experts concede that the massive size and anonymity of the Internet makes it
impossible to censor and control material. By passing legislation that is
unenforceable, the government has demonstrated it has no commitment to enforce
bans on pornography.''

Liberal backbencher Victor Perton (
http://www.vicnet.net.au/~victorp/vp.htm)
is acknowledged as one of the few `Net-savvy' politicians in Australia. He
recently commented across the Internet: ``If parliaments don't deal with the
Internet, they're characterised as Luddites. If they legislate, they're
referred to as `clueless'. ``We are not clueless. It is evident that much of
the objectionable material comes from jurisdictions outside Australia. The
nature of the Internet is such that people will shop, gamble and interact out
of the reach of the regulatory authorities,'' he added. He wrote that the
Victorian bill ``clearly excludes service providers unless they have been
criminally culpable''.

Melbourne-based ISP Access One described the legislation as ``rushed, ill-
conceived and ill-considered''. General manager Dawson Johns said: ``People are
struggling with this around the world, so how is it that Victoria can pass
legislation so quickly? The government has a problem: people are looking to it
to solve the insoluble issue. It is unfortunate that there has been a lot of
bad press about things that are minor and incredibly rare. ``What are we trying
to defend against?'' Johns asked. He hoped the law's enforcability would never
be tested and wondered whether its enforcement would be as intended. He
suggested parents ought to take responsibility for children, just as they
manage their access to television.

Meanwhile, the Western Australian government of Premier Richard Court has
passed a Censorship Bill imposing severe penalties for child pornography and
seeking to modernise that state's classifications regime. Like the Victorian
legislation, the WA bill creates offences relating to transmission, possession,
demonstration and advertisement of material known to be objectionable in
on-line services, e-mail BBSs and computer games.

``However, despite any legislation which is put in place, the ultimate
responsibility for protecting minors from accessing this material must rest
with parents and educational institutions,'' said WA Attorney General Cheryl
Edwardes. She advocated physical supervision and the use of software filtering.
``Clearly the government is aware that any action it takes is limited to people
within WA and that much of what is available through the Internet, in
particular, originates outside its jurisdiction,'' Edwardes said.

WA prepared its legislation after consultation with the federal government, the
Office of Film and Literature Classification, industry representatives and
community groups. The minister said decisions have been taken in line with the
National Classification Code and guidelines developed by state, territory and
federal officials. Service providers who knowingly distribute objectionable
material could face fines of up to $75,000 while individuals who infringe the
law face up to 18 months behind bars and $15,000 fines. As in Victoria, users
are the main target of the bill, with service providers unaffected unless they
allow material they know to be objectionable to be transferred on their
services.